Discovery Protective Order Appeals Are Subject of CAL's “Issues to Develop at Trial"
The January 2020 edition of the Center for Appellate Litigation (CAL) newsletter, Issues to Develop at Trial, is about fighting, at both the trial and appellate levels, prosecution efforts to obtain discovery protective orders. It includes some frequently asked questions and guidance. At the time of publication, procedures for appealing were available in the First and Second departments. Those procedures, and some recent decisions from the two departments, are included. CAL is interested in hearing about procedures in the other appellate division departments to include in future editions. CAL would also like to hear about any prosecution efforts to require waivers of discovery as a condition of guilty pleas, which is contrary to CPL 245.25(1).

Prior editions of Issues to Develop at Trial are available at . NYSDA thanks CAL for sharing this resource. 

Guidance on Navigating Bail and Forms of Bond
As bail reform continues to roll out, we are adding more resources to help defenders across the state. The Brooklyn Community Bail Fund, in coordination with other partners, has created a user friendly guide on bail and navigating other forms of bond, Bail’s Set…What’s Next? and translated in Spanish, Obtuvo Fianza, Ahora Que Sigue? . In addition to their guide, we have also posted on our resource page OCA forms on unsecured bond, partially secured bond, and secured bond ( ).  

Answering the Inflammatory, Often Misleading Media
After one month of implementation of bail and discovery reforms, across the state we are seeing media reports about cases that are inflammatory and often misstate the facts and law. We understand it is difficult or impossible at times for attorneys to comment on their individual client’s cases and are very grateful to defenders who have been able to publicly respond.

In response to the media frenzy, there is rapid response team set up through Justice Not Fear to help fact check and debunk stories ( ). If you would like to report media misinformation to the Justice Not Fear rapid response team, there is a link to do so by clicking the REPORT FEAR link at .

Rule 3.6 (Trial Publicity) of the New York Rules of Professional Responsibility provides guidance for prosecutors and defenders. Subdivision (a) provides: “A lawyer who is participating in or has participated in a criminal or civil matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” And subdivision (d) states: “Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.”

Scary Stories Obscure the Fact That Bail Reform is Working
The Buffalo News recently featured an item in its Another Voice column under the above title. “Pretrial bail decisions were never intended to be a punishment for a crime, or, except in the most extreme circumstances, an effort to protect public safety. If that was the case, why would rich defendants be allowed to avoid detention by paying bail?” The author goes on to explain, “Rather, bail is and always was intended to act for one purpose: to ensure that a person accused of a crime is present at trial. No evidence has surfaced that the new laws undermine the rate of return to court, and lawmakers should not consider weakening reforms unless strong proof of that outcome emerges. States that have adopted similar measures have not seen spikes in crime and show similar or even improved rates of return to court.”

PJI Rejects Pretrial Risk Assessment Tools
The Pretrial Justice Institute (PJI), which for over four decades has sought to advance safe, fair, and effective pretrial reform, just issued an “Updated Position on Pretrial Risk Assessment Tools.” The new document states flatly that “having risk tools as part of our ‘smart’ pretrial justice framework” was wrong. It notes that while PJI already opposed risk assessment tools for making pretrial detention decisions, it had supported the use of such tools in determining restrictions such as electronic monitoring, reporting, curfews, drug tests, etc. Compellingly, PJI states, “About three years ago, we heard but did not fully appreciate the opposition to pretrial risk assessment tools from civil rights organizations, impacted people, and researchers.”

Three years ago, NYSDA's Annual Conference CLE sessions included a presentation on “Bail Reform and Risk Assessment in New York State.” Concerns about risk assessment instruments were discussed—including the risk at such instruments can codify racial disparities. And the Aug.-Nov. 2014 issue of the Backup Center REPORT (pp. 5-6), noted concerns about risk assessment instruments used at various points in the criminal justice system, including the incorporation of bias. PJI's updated position is welcomed!

Concerns about risk assessment tools were included in a recent letter to Governor Andrew M. Cuomo, Assembly Speaker Carl Heastie and Senate Majority Leader Andrea Stewart-Cousins asking them to stand united in resolute opposition to any changes to the pre-trial bail statute, particularly any amendments that would allow judges to preemptively detain people based on predictions of so-called "dangerousness." The signers--NYSDA and more than 100 advocacy groups--explained: "So-called "dangerousness" assessments and predictive algorithms have never proven to achieve public safety. There is no evidence that risk assessments accurately predict future likelihood to commit a crime." Further, a 2019 study from MIT "concluded that pre-trial risk assessments 'do not guarantee or even increase the likelihood of better pre-trial outcomes' and thus will 'simply shift or obscure problems with current pre-trial practices.'" The letter was noted in the Times Union's Capitol Confidential blog on Feb.11, 2020 and in the Daily News on Feb.12, 2020 .

ILS Awards Westchester County the Upstate Model Family Representation Office Grant
The NYS Office of Indigent Legal Services (ILS) has announced the award of a grant to Westchester County for the first Upstate Model Family Representation Office. This grant will make legal representation available to parents in child welfare matters, even before court action is initiated. According to the RFP , the grant of $2,610,417 will be paid out over three years and is intended for the “implementation of client-centered, holistic, and interdisciplinary representation that addresses both the legal and social service issues confronting parents affected by the child welfare system, at all critical stages of their interaction with the system.” The Model Office will be housed at Legal Services of Hudson Valley (LSHV), a civil legal services organization. The announcement did not include details about how many new staff members will be hired by LSHV for implementation, or when the Model Office will be open for business.

A “new tool” touted last month by the New York State Sheriffs’ Association (NYSSA) for fighting crime, described in a Times Union article on Jan. 7, 2020, as “synthetic forensic marking technology,” is actually not very new. The New York Times had reported in an Oct. 18, 2010, item about the installation, in a McDonald's in the Netherlands, of a system that employees could activate to spray “a fine, barely visible mist laced with synthetic DNA” that would cover people in its range. This so-called synthetic DNA, said to carry “markers particular to the location,” could reportedly be used to match someone committing a crime to the scene. At the NYSSA press conference, officials expressed an assumption that results from such a system would be admissible in court. No mention of any Frye hearing or other investigation of the technology’s legal affect appeared in the press account. The Albany County Sheriff’s office said, according to a Spectrum News account , “‘We would not build a case solely on this piece of evidence … [which is] just a tool we would use with the rest of our evidence.” While apparently the main value of the system is seen as preventative—it is said , at least by those with an interest in it, to be linked to impressive drops in property crimes where installed—it could make its way into the prosecution of cases. Attorneys handling any such cases are encouraged to call the Backup Center.

Association News

Registration Open for NYSDA’s 34th Annual Metropolitan Trainer on March 7
NYSDA’s 34th Annual Metropolitan Trainer will be held on Saturday, March 7 from 9:00 am to 4:40 pm at NYU Law School’s Tishman Auditorium. The program will feature presentations on the new discovery, speedy trial, and bail laws, including implementation issues, and the annual Court of Appeals update. The program agenda and registration form are available here . Due to the program’s popularity, pre-registration is required. The deadline is Friday, February 28. Questions? Please contact Megan O’Toole at or 518-465-3524 x 25. We hope to see you there!

November-December Issue of NYSDA's Backup Center REPORT is Online
The last issue of NYSDA’s Public Defense Backup Center REPORT for 2019, November-December , is available on the NYSDA website. NYSDA members will receive a hard copy of this issue when printing and mailing is completed. If you have any questions, please contact the Backup Center at 518-465-3524.